marketing defect claim in Texas

2018See Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 116 (Tex. App.—San 4 In their first issue which we have not reached, Medinas argue Michelin’s no-evidence motion was legally insufficient as to their design defect and manufacturing defect claims because Michelin’s conditional challenges to “any element of” Medinas’ claims failed to specify which element or elements of these claims were challenged.

2018Medina v. Michelin N. Am., Inc., No. 05-16-00794-CV, 2018 Tex. App. LEXIS 804 , at *11 (Tex. App.—Dallas Jan. 39, 2018, no pet.) (mem. op.) (citing Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 116 (Tex. App.—San Antonio 2004, pet. denied)).

2023See Ethicon Endo–Surgery, Inc. v. Meyer, 249 S.W.3d 513, 516 (Tex. App.— Fort Worth 2007, no pet.) (“A marketing defect cause of action consists of five elements: (1) a risk of harm that is inherent in the product or that may arise from the intended or reasonably anticipated use of the product must exist, (2) the product supplier must actually know or reasonably foresee the risk of harm at the time the product is marketed, (3) the product must possess a marketing defect, (4) the absence of the warning or instructions must render the product unreasonably dangerous to the ultimate user or consum

2008See Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex.1978); Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513, 516 (Tex.App.-Fort Worth 2007, no pet.).

2023Ranger Conveying & Supply Co. v. Davis, 254 S.W.3d 471, 480 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). 6 Peters does not specifically challenge the trial court’s grant of summary judgment as to her marketing defect claims in her enumerated issues on appeal; however, she does address this argument in the body of her brief.

2008Ranger Conveying & Supply Co. v. Davis, 254 S.W.3d 471, 480 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 116 (Tex.App.-San Antonio 2004, pet. denied).

2008See Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex.1978); Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513, 516 (Tex.App.-Fort Worth 2007, no pet.).

2008See Bristol-Myers Co. v. Gonzales , 561 S.W.2d 801, 804 (Tex. 1978); Ethicon Endo-Surgery, Inc. v. Meyer , 249 S.W.3d 513, 516 (Tex. App.-Fort Worth 2007, no pet.).

2006Corp. , 932 S.W.2d 559, 562 (Tex. App.—Houston [1st Dist.] 1995, no writ) (to prevail on a marketing defect claim, the claimant must prove, inter alia , that “a risk of harm . . . may arise from the intended or reasonably anticipated use of the product,” that “the product supplier actually knew . . . the risk of harm,” that “the absence of a warning . . . render[ed] the product unreasonably dangerous,” and that “the failure to warn [was] a causative nexus in the product user’s injury”). [5] Barnett likened the Groom Master to parking meter vehicles and mail trucks—in each scenario, the operato

2006Corp., 932 S.W.2d 559, 562 (Tex.App.Houston [1st Dist.] 1995, no writ) (to prevail on a marketing defect claim, the claimant must prove, inter alia, that "a risk of harm ... may arise from the intended or reasonably anticipated use of the product,” that "the *883 product supplier actually knew ... the risk of harm,” that “the absence of a warning ... rendered] the product unreasonably dangerous,” and that "the failure to warn [was] a causative nexus in the product user’s injury”). 5 .

2012Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 578 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301 , 305–06 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)).

2011Olympic Arms, Inc. v. Green , 176 S.W.3d 567, 578 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

2006A marketing defect is found ‘if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.’ A design defect focuses on a defect in the product itself, and whether safer designs for the product were available.” Smith v. Aqua-Flo, Inc. , 23 S.W.3d 473, 480 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears , 911 S.W.2d 379, 382 (Tex. 1995)); see also Lemond v. Lone Star Gas Co. , 897 S.W.2d 378, 386 (Tex. App.—Fort Worth 1994), aff’d in part and rev’d in part on other grounds , 897 S.W.2d 755 (Tex. 1995) (“In ma

2006A marketing defect is found ‘if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.’ A design defect focuses on a defect in the product itself, and whether safer designs for the product were available.” Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 480 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995)); see also Lemond v. Lone Star Gas Co., 897 S.W.2d 378, 386 (Tex.App.-Fort Worth 1994), aff'd in part and rev’d in part on other grounds, 897 S.W.2d 755 (Tex.1995) (“In marketing

2006A marketing defect is found ‘if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.’ A design defect focuses on a defect in the product itself, and whether safer designs for the product were available.” Smith v. Aqua-Flo, Inc. , 23 S.W.3d 473, 480 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears , 911 S.W.2d 379, 382 (Tex. 1995)); see also Lemond v. Lone Star Gas Co. , 897 S.W.2d 378, 386 (Tex. App.—Fort Worth 1994), aff’d in part and rev’d in part on other grounds , 897 S.W.2d 755 (Tex. 1995) (“In ma

2006A marketing defect is found ‘if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.’ A design defect focuses on a defect in the product itself, and whether safer designs for the product were available.” Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 480 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995)); see also Lemond v. Lone Star Gas Co., 897 S.W.2d 378, 386 (Tex.App.-Fort Worth 1994), aff'd in part and rev’d in part on other grounds, 897 S.W.2d 755 (Tex.1995) (“In marketing

2006A marketing defect is found ‘if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.’ A design defect focuses on a defect in the product itself, and whether safer designs for the product were available.” Smith v. Aqua-Flo, Inc. , 23 S.W.3d 473, 480 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears , 911 S.W.2d 379, 382 (Tex. 1995)); see also Lemond v. Lone Star Gas Co. , 897 S.W.2d 378, 386 (Tex. App.—Fort Worth 1994), aff’d in part and rev’d in part on other grounds , 897 S.W.2d 755 (Tex. 1995) (“In ma

2006A marketing defect is found ‘if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.’ A design defect focuses on a defect in the product itself, and whether safer designs for the product were available.” Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 480 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995)); see also Lemond v. Lone Star Gas Co., 897 S.W.2d 378, 386 (Tex.App.-Fort Worth 1994), aff'd in part and rev’d in part on other grounds, 897 S.W.2d 755 (Tex.1995) (“In marketing

2006Thus, we reject Benavides’s assertion that “failure to warn” — or a marketing defect claim — is “not a cause of action in and of itself.” Evidence of Failure to Warn “[I]t is not ... proper to admit evidence unless it is addressed to or bears upon some issue raised by the pleadings.” Erisman v. Thompson, 140 Tex. 361 , 167 S.W.2d 731, 733 (1943).

2006Thus, we reject Benavides’s assertion that “failure to warn” — or a marketing defect claim — is “not a cause of action in and of itself.” Evidence of Failure to Warn “[I]t is not ... proper to admit evidence unless it is addressed to or bears upon some issue raised by the pleadings.” Erisman v. Thompson, 140 Tex. 361 , 167 S.W.2d 731, 733 (1943).

2006A marketing defect is found ‘if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.’ A design defect focuses on a defect in the product itself, and whether safer designs for the product were available.” Smith v. Aqua-Flo, Inc. , 23 S.W.3d 473, 480 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears , 911 S.W.2d 379, 382 (Tex. 1995)); see also Lemond v. Lone Star Gas Co. , 897 S.W.2d 378, 386 (Tex. App.—Fort Worth 1994), aff’d in part and rev’d in part on other grounds , 897 S.W.2d 755 (Tex. 1995) (“In ma

2006A marketing defect is found ‘if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.’ A design defect focuses on a defect in the product itself, and whether safer designs for the product were available.” Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 480 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995)); see also Lemond v. Lone Star Gas Co., 897 S.W.2d 378, 386 (Tex.App.-Fort Worth 1994), aff'd in part and rev’d in part on other grounds, 897 S.W.2d 755 (Tex.1995) (“In marketing

2010See USX Corp. v. Salinas, 818 S.W.2d 473, 482-83 (Tex.App.-San Antonio 1991, writ denied).

2004Carstarphen, Product Defects, 2 Texas Torts and Remedies § 41.01[2] (1991), for the proposition that “[a] manufacturing defect exists when a product does not conform to the design standards and blueprints of the manufacturer and the flaw makes the product more dangerous and therefore unfit for its intended or reasonably foreseeable uses.” Salinas, 818 S.W.2d at 482 n. 8.

2018Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993).

2012See Emerson v. Tunnell, 793 S.W.2d 947, 948 (Tex. 1990) (holding that appellant preserved complaint that trial court erred in amount of judgment entered by filing motion for judgment on jury’s verdict, stating that appellant “presented a motion to the trial court for judgment for a quantum meruit measure of recovery based upon the jury verdict” and that “[h]e obtained an adverse ruling from the trial court when it granted him judgment for an amount less than he requested”). 75 fire, the jury’s findings on the marketing-defect claim are likewise supported by the record.

2009See, e.g., Merck & Co. v. Garza, 277 S.W.3d 430, 437 (Tex. App.—San Antonio 2008, pet. filed). 24 It is undisputed that an AED is a medical device governed by the Federal Food, Drug and Cosmetic Act.

2002See Coleman v. Cintas Sales Corp., 40 S.W.3d 544 (Tex.App.-San Antonio 2001, pet. denied).

2002See Coleman v. Cintas Sales Corp., 40 S.W.3d 544 (Tex.App.-San Antonio 2001, pet. denied).

1999Sims v. Washex Machinery Corp., 932 S.W.2d 559, 562 (Tex.App.—Houston [1st Dist.] 1995, no writ); see also Keene Corp., 881 S.W.2d at 610 (citing Borel, 493 F.2d at 1095 ; Pittsburgh Corning Corp. v. Thomas, 668 S.W.2d 876, 878-79 (Tex.App.—Houston [14th Dist.] 1984, no writ)).

1999Sims v. Washex Machinery Corp., 932 S.W.2d 559, 562 (Tex.App.—Houston [1st Dist.] 1995, no writ); see also Keene Corp., 881 S.W.2d at 610 (citing Borel, 493 F.2d at 1095 ; Pittsburgh Corning Corp. v. Thomas, 668 S.W.2d 876, 878-79 (Tex.App.—Houston [14th Dist.] 1984, no writ)).

1999Sims v. Washex Machinery Corp., 932 S.W.2d 559, 562 (Tex.App.—Houston [1st Dist.] 1995, no writ); see also Keene Corp., 881 S.W.2d at 610 (citing Borel, 493 F.2d at 1095 ; Pittsburgh Corning Corp. v. Thomas, 668 S.W.2d 876, 878-79 (Tex.App.—Houston [14th Dist.] 1984, no writ)).

1997Design Defect The duty to design a safe product is "an obligation imposed by law." McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex.1967).

1997Design Defect The duty to design a safe product is “an obligation imposed by law.” McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex.1967).

1995Houston Lighting & Power Co. v. Reynolds, 712 S.W.2d 761, 767 (Tex.App.—Houston [1st Dist.] 1986), rev’d on other grounds, 765 S.W.2d 784 (Tex. 1988).